freedom of speech cases (consti law)

7/23/2019 FREEDOM OF SPEECH CASES (CONSTI LAW)

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SULLIVAN VS. NEW YORK TIMES

Brief Fact Summary. The Plaintiff, Sullivan (Plaintiff) sued the Defendant, the New York

Times Co. (Defendant), for printing an advertisement aout the !ivil rights movement inthe south that defamed the Plaintiff.

Syno!i! of Ru"e of La#. The !onstitutional guarantees re"uire a federal rule that

prohiits a puli! offi!ial from re!overing damages for a defamator# falsehood relating

to his offi!ial !ondu!t unless he proves that the statement was made with a!tual mali!e

$ that is, with knowledge that it was false or with re!kless disregard of whether it was

false or not.

Fact!. The Plaintiff was one of three Commissioners of %ontgomer#, &laama, who!laimed that he was defamed in a full'page ad taken out in the New York Times. Theadvertisement was entitled, eed Their *ising +oi!es and it !harged in part that anunpre!edented wave of terror had een dire!ted against those who parti!ipated in the!ivil rights movement in the South. Some of the parti!ulars of the advertisement werefalse. &lthough the advertisement did not mention the Plaintiff # name, he !laimed thatit referred to him indire!tl# e!ause he had oversight responsiilit# of the poli!e. TheDefendant !laimed that it authori-ed puli!ation of the advertisement e!ause it did nothave an# reason to elieve that its !ontents were false. There was no independent effortto !he!k its a!!ura!#. The Plaintiff demanded that the Defendant retra!t the

advertisement. The Defendant was pu--led as to wh# the Plaintiff thought theadvertisement refle!ted adversel# on him. The ur# found the ad lielous per se and a!tionale without proof of mali!e. The ur# awarded the Plaintiff/011,111 in damages. The &laama Supreme Court affirmed. The Defendant appealed.

I!!ue. 2s the Defendant liale for defamation for printing an advertisement, whi!h!riti!i-ed a puli! offi!ial3s offi!ial !ondu!t4

$e"%. No. *eversed and remanded.

5 Safeguards for freedom of spee!h and of the press are re"uired # the 6irst and

6ourteenth &mendments of the 7nited States Constitution (Constitution) in a liel a!tionrought # a puli! offi!ial against !riti!s of his offi!ial !ondu!t.

5 7nder &laama law, a puli!ation is lielous per se if the words tend to inure a person

in his reputation or to ring him into puli! !ontempt. The ur# must find that the words

were pulished of and !on!erning the plaintiff. 8n!e liel per se has een estalished,

the defendant has no defense as to stated fa!ts unless he !an persuade the ur# that



the# were true in all their parti!ulars.

5 9rroneous statement is inevitale in free deate and it must e prote!ted if the

freedoms of e:pression are to have the reathing spa!e that the need to survive.

5 The !onstitutional guarantees re"uire a federal rule that prohiits a puli! offi!ial from

re!overing damages for a defamator# falsehood relating to his offi!ial !ondu!t unless heproves that the statement was made with a!tual mali!e $ that is, with knowledge that it

was false or with re!kless disregard of whether it was false or not.

5 The Supreme Court of the 7nited States (Supreme Court) holds that the Constitution

delimits a State3s power to award damages for liel in a!tions rought # puli! offi!ials

against !riti!s of their offi!ial !ondu!t. 2n this !ase, the rule re"uiring proof of a!tual

mali!e is appli!ale.

5 The Defendant3s failure to retra!t the advertisement upon the Plaintiff3s demand is not

ade"uate eviden!e of mali!e for !onstitutional purposes. ;ikewise, it is not ade"uate

eviden!e of mali!e that the Defendant failed to !he!k the advertisements a!!ura!#against the news stories in the Defendant3s own files. &lso, the eviden!e was

!onstitutionall# defe!tive in another respe!t< it was in!apale of supporting the ur#3s

finding that the allegedl# lielous statements were made of and !on!erning the Plaintiff.

Con!urren!e. =usti!e ugo >la!k (=. >la!k) argued that the 6irst and 6ourteenth

&mendments of the Constitution do not merel# delimit a State3s power to award

damages, ut !ompletel# prohiit a State from e:er!ising su!h a power. The Defendant

had an asolute, un!onditional right to pulish !riti!isms of the %ontgomer# agen!ies

and offi!ials.

&i!cu!!ion. 2n order for a puli! offi!ial to re!over in a defamation a!tion involving hisoffi!ial !ondu!t, mali!e must e proved. ?ithout the showing of mali!e, the SupremeCourt felt that a defamation a!tion in this !ase would severel# !ripple the safeguards offreedom spee!h and e:pression that are guaranteed in the 6irst &mendment of theConstitution and appli!ale to the States via the 6ourteenth &mendment of theConstitution.

U.S. v Bustos G.R. No. L-12592 March 8, 1918=. %al!olm

6a!ts<

2n @A@0, B Pampanga residents signed a petition to the 9:e!utive Se!retar# regarding !harges

against *oman Punsalan, the usti!e of the pea!e of %a!aee. The# wanted to oust him from his

offi!e.



Spe!ifi! allegations against him in!luded rier# !harges, involuntar# servitude, and theft.

The usti!e denied the !harges. 2n the C62, not all the !harges were proved. >ut, the udge still found

him guilt#.

Punsalan filed !harges alleging that he was the vi!tim of prose!ution and one =aime, an au:iliar#

usti!e, instigated the !harges against him for personal reasons. e was a!"uitted.

The !omplainants filed an appeal to the overnor eneral ut it wasn3t a!ted upon.Criminal a!tion was instituted aganst the residents # Punsalan.

The C62 found almost all of the B defendants guilt# and senten!ed them to pa# @1 pesos or suffer

imprisonment in !ase of insolven!#.

The defendants filed a motion for a retrial to retire the oe!tion made # Punsalan. The trial !ourt

denied the motion. &ll e:!ept E of the defendants appealed. %aking assignments of error.

@. The !ourt erred in overruling motion for retrial.

E. 9rror in not holding that the lielous statement was not privileged

B. 9rror in not a!"uitting defendants

. 9viden!e failed to show gult of defendants e#ond reasonale dout.

0. 9rred in making defendants prove that the lielous statements were true.F. 9rror in sustaining the prose!ution3s oe!tion to the introdu!tion in eviden!e # the a!!used of

the affidavits upon whi!h the petition forming the asis of the lielous !harge was ased.

G. 9rred in refusing to permit the defendants to retire the oe!tion in advertentl# interposed # their

!ounsel to the admission in eviden!e of the e:pediente administrativo out of whi!h the a!!usation in

this !ase arose.

2ssue<

?hether or not the defendants and appellants are guilt# of a liel of *oman Punsalan, usti!e of the

pea!e in Pampanga.

eld< Yes. Defendants a!"uitted.

*atio<

6reedom of spee!h was non e:istent in the !ountr# efore @A11. There were small efforts at reform

made # the ;a Solidaridad. The %alolos Constitution, on the other hand, guaranteed freedom of

spee!h.

During the 7.S. period, President %!Hinle# himself laid down the tenet %agna Charta of Philippine

;iert# when he wrote, that no law shall e passed aridging the freedom of spee!h or of the press

or of the rights of the people to pea!eal# assemle and petition the overnment for a redress of

grievan!es.I This was in the Philippine >ill.

2n the &mri!an !ases it was held, there were referen!es to puli! opinion should e the !onstantsour!e of liert# and demo!ra!#. 2t also said the guaranties of a free spee!h and a free press

in!lude the right to !riti!i-e udi!ial !ondu!t. The administration of the law is a matter of vital puli!

!on!ern. ?hether the law is wisel# or adl# enfor!ed is, therefore, a fit sue!t for proper !omment.

2f the people !annot !riti!i-e a usti!e of the pea!e or a udge the same as an# other puli! offi!er,

puli! opinion will e effe!tivel# mu--led. &ttempted terrori-ation of puli! opinion on the part of the

udi!iar# would e t#rann# of the asest sort.



2t is a dut# whi!h ever# one owes to so!iet# or to the State to assist in the investigation of an#

alleged mis!ondu!t. 2t is further the dut# of all who know of an# offi!ial dereli!tion on the part of a

magistrate or the wrongful a!t of an# puli! offi!er to ring the fa!ts to the noti!e of those whose

dut# it is to in"uire into and punish them.

The right to assemle and petition is the ne!essar# !onse"uen!e of repuli!an institutions and the

!omplement of the part of free spee!h. &sseml# means a right on the part of !iti-ens to meetpea!eal# for !onsultation in respe!t to puli! affairs. Petition means that an# person or group of

persons !an appl#, without fear of penalt#, to the appropriate ran!h or offi!e of the government for a

redress of grievan!es. The persons assemling and petitioning must, of !ourse, assume

responsiilit# for the !harges made.

Puli! poli!# has demanded prote!tion for puli! opinion. The do!trine of privilege has een the

result of this. Privilged !ommuni!ations ma# in some instan!es afford an immunit# to the slanderer.

Puli! poli!# is the unfettered administration of usti!e.

Privilege is either asolute or "ualified. Jualified privilege is prima fa!ie whi!h ma# e lost # proof

of mali!e. This is apparent in !omplaints made in good faith against a puli! offi!ial3s !ondu!t having

a dut# in the matter. 9ven if the statements were found to e false, the prote!tion of privilege ma#!over the individual given that it was in good faith. There must e a sense of dut# and not a self'

seeking motive.

& !ommuni!ation made ona fide upon an# sue!t'matter in whi!h the part# !ommuni!ating has an

interest, or in referen!e to whi!h has a dut#, is privileged, if made to a person having a

!orresponding interest or dut#, although it !ontained !riminator# matter whi!h without this privilege

would e slanderous and a!tionale.

2n the usual !ase mali!e !an e presumed from defamator# words. Privilege destro#s that

presumption. The onus of proving mali!e then lies on the plaintiff. The plaintiff must ring home to

the defendant the e:isten!e of mali!e as the true motive of his !ondu!t. 6alsehood and the asen!e

of proale !ause will amount to proof of mali!e.

2t is true that the parti!ular words set out in the information, if said of a private person, might well e

!onsidered lielous per se. The !harges might also under !ertain !on!eivale !onditions !onvi!t one

of a liel of a government offi!ial. &s a general rule words imputing to a udge or a usti!e of the

pea!e dishonest# or !orruption or in!apa!it# or mis!ondu!t tou!hing him in his offi!e are a!tionale.

>ut as suggested in the eginning we do not have present a simple !ase of dire!t and vi!ious

a!!usations pulished in the press, ut of !harges predi!ated on affidavits made to the proper offi!ial

and thus "ualifiedl# privileged. 9:press mali!e has not een proved # the prose!ution. 6urther,

although the !harges are proal# not true as to the usti!e of the pea!e, the# were elieved to e

true # the petitioners. ood faith surrounded their a!tion. Proale !ause for them to think that

malfeasan!e or misfeasan!e in offi!e e:isted is apparent. The ends and the motives of these

!iti-ensK to se!ure the removal from offi!e of a person thought to e venal K were ustifiale. 2n nowa# did the# ause the privilege. These respe!tale !iti-ens did not eagerl# sei-e on a frivolous

matter ut on instan!es whi!h not onl# seemed to them of a grave !hara!ter, ut whi!h were

suffi!ient in an investigation # a udge of first instan!e to !onvin!e him of their seriousness. No

undue puli!it# was given to the petition. The manner of !ommenting on the !ondu!t of the usti!e of

the pea!e was proper.



*epuli! of the PhilippinesSU'REME (OURT

%anila

9N >&NC

).R. No. L*+,-+ &ecem/er -+0 12,

3OSE BUR)OS0 SR.0 3OSE BUR)OS0 3R.0 BAYANI SORIANO an% 3. BUR)OS ME&IA

SERVI(ES0 IN(.0petitioners,vs.T$E ($IEF OF STAFF0 ARME& FOR(ES OF T$E '$ILI''INES0 T$E ($IEF0 '$ILI''INE

(ONSTABULARY0 T$E ($IEF LE)AL OFFI(ER0 'RESI&ENTIAL SE(URITY (OMMAN&0 T$E

3U&)E A&VO(ATE )ENERAL0 ET AL.0 respondents.

Lorenzo M. Tañada, Wigberto E. Tañada, Martiniano Vivo, Augusto Sanchez, Joker P. Arroo,

Je!o"ar #ina and $ene Saguisag %or &etitioners.

The So'icitor (enera' %or res&ondents.

ES(OLIN0 J.:

&ssailed in this petition for !ertiorari prohiition and mandamus with preliminar# mandator# andprohiitor# inun!tion is the validit# of two LEM sear!h warrants issued on De!emer G, @AE #respondent =udge 9rnani Cru-'Pano, 9:e!utive =udge of the then Court of 6irst 2nstan!e of *i-alLJue-on Cit#M, under whi!h the premises known as No. @A, *oad B, Proe!t F, Jue-on Cit#, and G7nits C O D, *%S >uilding, Jue-on &venue, Jue-on Cit#, usiness addresses of the I%etropolitan

%ailI and I?e 6orumI newspapers, respe!tivel#, were sear!hed, and offi!e and printing ma!hines,e"uipment, paraphernalia, motor vehi!les and other arti!les used in the printing, puli!ation anddistriution of the said newspapers, as well as numerous papers, do!uments, ooks and otherwritten literature alleged to e in the possession and !ontrol of petitioner =ose >urgos, =r. pulisher'editor of the I?e 6orumI newspaper, were sei-ed.

Petitioners further pra# that a writ of preliminar# mandator# and prohiitor# inun!tion e issued forthe return of the sei-ed arti!les, and that respondents, Iparti!ularl# the Chief ;egal 8ffi!er,Presidential Se!urit# Command, the =udge &dvo!ate eneral, &6P, the Cit# 6is!al of Jue-on Cit#,their representatives, assistants, sualterns, suordinates, sustitute or su!!essorsI e enoinedfrom using the arti!les thus sei-ed as eviden!e against petitioner =ose >urgos, =r. and the othera!!used in Criminal Case No. J' 1EEGE of the *egional Trial Court of Jue-on Cit#, entitled Peo&'e

v. Jose #urgos, Jr . et a' .

2n our *esolution dated =une E@, @AB, respondents were re"uired to answer the petition. The pleafor preliminar# mandator# and prohiitor# inun!tion was set for hearing on =une E, @AB, later resetto =ul# G, @AB, on motion of the Soli!itor eneral in ehalf of respondents.

&t the hearing on =ul# G, @AB, the Soli!itor eneral, while opposing petitioners pra#er for a writ ofpreliminar# mandator# inun!tion, manifested that respondents Iwill not use the aforementioned



arti!les as eviden!e in the aforementioned !ase until final resolution of the legalit# of the sei-ure ofthe aforementioned arti!les. ...I - ?ith this manifestation, the pra#er for preliminar# prohiitor# inun!tionwas rendered moot and a!ademi!.

*espondents would have this Court dismiss the petition on the ground that petitioners had !ome tothis Court without having previousl# sought the "uashal of the sear!h warrants efore respondent

udge. 2ndeed, petitioners, efore impugning the validit# of the warrants efore this Court, shouldhave filed a motion to "uash said warrants in the !ourt that issued them. 4 >ut this pro!edural flawnotwithstanding, we take !ogni-an!e of this petition in view of the seriousness and urgen!# of the!onstitutional issues raised not to mention the puli! interest generated # the sear!h of the I?e 6orumIoffi!es, whi!h was televised in Channel G and widel# puli!i-ed in all metropolitan dailies. The e:isten!eof this spe!ial !ir!umstan!e ustifies this Court to e:er!ise its inherent power to suspend its rules. 2n thewords of the revered %r. =usti!e &ad Santos in the !ase of ). Vda. de *rdoveza v. $a"undo, , Iit isalwa#s in the power of the !ourt LSupreme CourtM to suspend its rules or to e:!ept a parti!ular !ase fromits operation, whenever the purposes of usti!e re"uire it...I.

*espondents likewise urge dismissal of the petition on ground of la!hes. Considerale stress is laidon the fa!t that while said sear!h warrants were issued on De!emer G, @AE, the instant petition

impugning the same was filed onl# on =une @F, @AB or after the lapse of a period of more than si:LFM months.

;a!hes is failure or negligen!e for an unreasonale and une:plained length of time to do that whi!h,# e:er!ising due diligen!e, !ould or should have een done earlier. 2t is negligen!e or omission toassert a right within a reasonale time, warranting a presumption that the part# entitled to assert iteither has aandoned it or de!lined to assert it. 5

Petitioners, in their Consolidated *epl#, e:plained the reason for the dela# in the filing of the petitionthus<

*espondents should not find fault, as the# now do Lp. @, &nswer, p. B, %anifestationMwith the fa!t that the Petition was filed on =une @F, @AB, more than half a #ear afterthe petitioners premises had een raided.

The !limate of the times has given petitioners no other !hoi!e. 2f the# had waited thislong to ring their !ase to !ourt, it was e!ause the# tried at first to e:haust otherremedies. The events of the past eleven fill #ears had taught them that ever#thing inthis !ountr#, from release of puli! funds to release of detained persons from!ustod#, has e!ome a matter of e:e!utive enevolen!e or largesse

en!e, as soon as the# !ould, petitioners, upon suggestion of persons !lose to thePresident, like 6is!al 6laminiano, sent a letter to President %ar!os, through !ounsel

&ntonio Coronet asking the return at least of the printing e"uipment and vehi!les. &nd after su!h a letter had een sent, through Col. >alino +. Diego, Chief2ntelligen!e and ;egal 8ffi!er of the Presidential Se!urit# Command, the# werefurther en!ouraged to hope that the latter would #ield the desired results.

&fter waiting in vain for five L0M months, petitioners finall# de!ided to !ome to Court.Lpp. @EB'@E, *olloM



&lthough the reason given # petitioners ma# not e flattering to our udi!ial s#stem, ?e find noground to punish or !hastise them for an error in udgment. 8n the !ontrar#, the e:traudi!ial effortse:erted # petitioners "uite evidentl# negate the presumption that the# had aandoned their right tothe possession of the sei-ed propert#, there# refuting the !harge of la!hes against them.

*espondents also sumit the theor# that sin!e petitioner =ose >urgos, =r. had used and marked as

eviden!e some of the sei-ed do!uments in Criminal Case No. J' 1EEGE, he is now estopped from!hallenging the validit# of the sear!h warrants. ?e do not follow the logi! of respondents. Thesedo!uments lawfull# elong to petitioner =ose >urgos, =r. and he !an do whatever he pleases withthem, within legal ounds. The fa!t that he has used them as eviden!e does not and !annot in an#wa# affe!t the validit# or invalidit# of the sear!h warrants assailed in this petition.

Several and diverse reasons have een advan!ed # petitioners to nullif# the sear!h warrants in"uestion.

@. Petitioners fault respondent udge for his alleged failure to !ondu!t an e:amination under oath oraffirmation of the appli!ant and his witnesses, as mandated # the aove'"uoted !onstitutional

provision as wen as Se!. , *ule @EF of the *ules of Court . +

This oe!tion, however, ma# properl# e!onsidered moot and a!ademi!, as petitioners themselves !on!eded during the hearing on &ugust A,@AB, that an e:amination had indeed een !ondu!ted # respondent udge of Col. &adilla and hiswitnesses.

E. Sear!h ?arrants No. E1'ELaM and No. E1' ELM were used to sear!h two distin!t pla!es< No. @A,*oad B, Proe!t F, Jue-on Cit# and G 7nits C O D, *%S >uilding, Jue-on &venue, Jue-on Cit#,respe!tivel#. 8e!tion is interposed to the e:e!ution of Sear!h ?arrant No. E1'ELM at the latteraddress on the ground that the two sear!h warrants pinpointed onl# one pla!e where petitioner =ose>urgos, =r. was allegedl# keeping and !on!ealing the arti!les listed therein, i.e., No. @A, *oad B,Proe!t F, Jue-on Cit#. This assertion is ased on that portion of Sear!h ?arrant No. E1' ELMwhi!h states<

?hi!h have een used, and are eing used as instruments and means of !ommittingthe !rime of suversion penali-ed under P.D. 0 as amended and he is keeping and!on!ealing the same at @A *oad B, Proe!t F, Jue-on Cit#.

The defe!t pointed out is oviousl# a t#pographi!al error. Pre!isel#, two sear!h warrants wereapplied for and issued e!ause the purpose and intent were to sear!h two distin!t premises. 2t woulde "uite asurd and illogi!al for respondent udge to have issued two warrants intended for one andthe same pla!e. >esides, the addresses of the pla!es sought to e sear!hed were spe!ifi!all# setforth in the appli!ation, and sin!e it was Col. &adilla himself who headed the team whi!h e:e!utedthe sear!h warrants, the amiguit# that might have arisen # reason of the t#pographi!al error ismore apparent than real. The fa!t is that the pla!e for whi!h Sear!h ?arrant No. E1' ELM was

applied for was GE 7nits C O D, *%S >uilding, Jue-on &venue, Jue-on Cit#, whi!h addressappeared in the opening paragraph of the said warrant. 6 8viousl# this is the same pla!e thatrespondent udge had in mind when he issued ?arrant No. E1'E LM.

2n the determination of whether a sear!h warrant des!ries the premises to e sear!hed withsuffi!ient parti!ularit#, it has een held Ithat the e:e!uting offi!ers prior knowledge as to the pla!eintended in the warrant is relevant. This would seem to e espe!iall# true where the e:e!uting offi!er is the affiant on whose affidavit the warrant had issued, and when he knows that the udge who



issued the warrant intended the uilding des!ried in the affidavit, &nd it has also een said that thee:e!uting offi!er ma# look to the affidavit in the offi!ial !ourt file to resolve an amiguit# in thewarrant as to the pla!e to e sear!hed.I 2

B. &nother ground relied upon to annul the sear!h warrants is the fa!t that although the warrantswere dire!ted against =ose >urgos, =r. alone, arti!les elonging to his !o'petitioners =ose >urgos,

Sr., >a#ani Soriano and the =. >urgos %edia Servi!es, 2n!. were sei-ed.

Se!tion E, *ule @EF of the *ules of Court, enumerates the personal properties that ma# e sei-edunder a sear!h warrant, to wit<

Se!. E. Personal Propert# to e sei-ed. K & sear!h warrant ma# e issued for thesear!h and sei-ure of the following personal propert#<

LaM Propert# sue!t of the offenseQ

LM Propert# stolen or eme--led and other pro!eeds or fruits of the

offenseQ and

L!M Propert# used or intended to e used as the means of !ommittingan offense.

The aove rule does not re"uire that the propert# to e sei-ed should e owned # the personagainst whom the sear!h warrant is dire!ted. 2t ma# or ma# not e owned # him. 2n fa!t, undersuse!tion LM of the aove'"uoted Se!tion E, one of the properties that ma# e sei-ed is stolenpropert#. Ne!essaril#, stolen propert# must e owned # one other than the person in whosepossession it ma# e at the time of the sear!h and sei-ure. 8wnership, therefore, is of no!onse"uen!e, and it is suffi!ient that the person against whom the warrant is dire!ted has !ontrol orpossession of the propert# sought to e sei-ed, as petitioner =ose >urgos, =r. was alleged to have in

relation to the arti!les and propert# sei-ed under the warrants.

. Neither is there merit in petitioners assertion that real properties were sei-ed under the disputedwarrants. 7nder &rti!le @0L0M of the Civil Code of the Philippines, Ima!hiner#, re!eptales,instruments or implements intended # the owner of the tenement for an industr# or works whi!hma# e !arried on in a uilding or on a pie!e of land and whi!h tend dire!tl# to meet the needs of thesaid industr# or worksI are !onsidered immovale propert#. 2n +avao Sa"i'' )o. v. )asti''o 1 wherethis legal provision was invoked, this Court ruled that ma!hiner# whi!h is movale # nature e!omesimmoili-ed when pla!ed # the owner of the tenement, propert# or plant, ut not so when pla!ed # atenant, usufru!tuar#, or an# other person having onl# a temporar# right, unless su!h person a!ted as theagent of the owner.

2n the !ase at ar, petitioners do not !laim to e the owners of the land andRor uilding on whi!h thema!hineries were pla!ed. This eing the !ase, the ma!hineries in "uestion, while in fa!t olted tothe ground remain movale propert# sus!eptile to sei-ure under a sear!h warrant.

0. The "uestioned sear!h warrants were issued # respondent udge upon appli!ation of Col.*olando N. &adilla 2ntelligen!e 8ffi!er of the P.C. %etro!om. 7 The appli!ation was a!!ompanied #the =oint &ffidavit of &leandro %. utierre- and Pedro 7. Tango, memers of the %etro!om 2ntelligen!e and Se!urit#

roup under Col. &adilla whi!h !ondu!ted a surveillan!e of the premises prior to the filing of the appli!ation for the sear!h warrants onDe!emer G, @AE.



2t is !ontended # petitioners, however, that the aovementioned do!uments !ould not haveprovided suffi!ient asis for the finding of a proale !ause upon whi!h a warrant ma# validl# issuein a!!ordan!e with Se!tion B, &rti!le 2+ of the @AGB Constitution whi!h provides<

S9C. B. ... and no sear!h warrant or warrant of arrest shall issue e:!ept uponproale !ause to e determined # the udge, or su!h other responsile offi!er as

ma# e authori-ed # law, after e:amination under oath or affirmation of the!omplainant and the witnesses he ma# produ!e, and parti!ularl# des!riing the pla!eto e sear!hed and the persons or things to e sei-ed.

?e find petitioners thesis impressed with merit. Proale !ause for a sear!h is defined as su!h fa!tsand !ir!umstan!es whi!h would lead a reasonal# dis!reet and prudent man to elieve that anoffense has een !ommitted and that the oe!ts sought in !onne!tion with the offense are in thepla!e sought to e sear!hed. &nd when the sear!h warrant applied for is dire!ted against anewspaper pulisher or editor in !onne!tion with the puli!ation of suversive materials, as in the!ase at ar, the appli!ation andRor its supporting affidavits must !ontain a spe!ifi!ation, stating withparti!ularit# the alleged suversive material he has pulished or is intending to pulish. %eregenerali-ation will not suffi!e. Thus, the road statement in Col. &adillas appli!ation that petitionerIis in possession or has in his !ontrol printing e"uipment and other paraphernalia, news puli!ationsand other do!uments whi!h were used and are all !ontinuousl# eing used as a means of!ommitting the offense of suversion punishale under Presidential De!ree 0, as amended ...I - is

a mere !on!lusion of law and does not satisf# the re"uirements of proale !ause. >ereft of su!h parti!ulars as would ustif# a finding of thee:isten!e of proale !ause, said allegation !annot serve as asis for the issuan!e of a sear!h warrant and it was a grave error for

respondent udge to have done so.

9"uall# insuffi!ient as asis for the determination of proale !ause is the statement !ontained inthe oint affidavit of &leandro %. utierre- and Pedro 7. Tango, Ithat the eviden!e gathered and!ollated # our unit !learl# shows that the premises aove' mentioned and the arti!les and thingsaove'des!ried were used and are !ontinuousl# eing used for suversive a!tivities in !onspira!#with, and to promote the oe!tive of, illegal organi-ations su!h as the ;ight'a'6ire %ovement,

%ovement for 6ree Philippines, and &pril F %ovement.I 4

2n mandating that Ino warrant shall issue e:!ept upon proale !ause to e determined # the udge, ... after e:amination under oath or affirmation of the !omplainant and the witnesses he ma#produ!eQ , the Constitution re"uires no less than personal knowledge # the !omplainant or his witnesses of the fa!ts upon whi!h the

issuan!e of a sear!h warrant ma# e ustified. 2n A'varez v. )ourt o% -irst nstance, 5 this Court ruled that Ithe oath re"uired must refer tothe truth of the fa!ts within the personal knowledge of the petitioner or his witnesses, e!ause the purpose thereof is to !onvin!e the!ommitting magistrate, not the individual making the affidavit and seeking the issuan!e of the warrant, of the e:isten!e of proale !ause.I

&s !ou!hed, the "uoted averment in said oint affidavit filed efore respondent udge hardl# meets the test of suffi!ien!# estalished # thisCourt in &lvare- !ase.

&nother fa!tor whi!h makes the sear!h warrants under !onsideration !onstitutionall# oe!tionale isthat the# are in the nature of general warrants. The sear!h warrants des!rie the arti!les sought to

e sei-ed in this wise<

@M &ll printing e"uipment, paraphernalia, paper, ink, photo (e"uipment, t#pewriters,!ainets, tales, !ommuni!ationsRre!ording e"uipment, tape re!orders, di!taphoneand the like used andRor !onne!ted in the printing of the I?9 68*7%I newspaperand an# and all do!uments !ommuni!ation, letters and fa!simile of prints related tothe I?9 68*7%I newspaper.



EM Suversive do!uments, pamphlets, leaflets, ooks, and other puli!ation topromote the oe!tives and piurposes of the suversive organi-ation known as%ovement for 6ree Philippines, ;ight'a'6ire %ovement and &pril F %ovementQ and,

BM %otor vehi!les used in the distriutionR!ir!ulation of the I?9 68*7%I and othersuversive materials and propaganda, more parti!ularl#,

@M To#ota'Corolla, !olored #ellow with Plate No. NH& AEQ

EM D&TS7N pi!k'up !olored white with Plate No. NH+ AFA

BM & deliver# tru!k with Plate No. N>S 0EQ

M T8Y8T&'T&%&*&?, !olored white with Plate No. P>P FF0Q and,

0M T8Y8T& i';u:, pi!k'up tru!k with Plate No. N+ EG withmarking I>agong Silang.I

2n Stan%ord v. State o% Te/as + the sear!h warrant whi!h authori-ed the sear!h for Iooks, re!ords, pamphlets, !ards, re!eipts,

lists, memoranda, pi!tures, re!ordings and other written instruments !on!erning the Communist Part# in Te:as,I was de!lared void # the7.S. Supreme Court for eing too general. 2n like manner, dire!tions to Isei-e an# eviden!e in !onne!tionwith the violation of SDC @B'BG1B

or otherwiseI have een held too general, and that portion of a sear!h warrant whi!h authori-ed the sei-ure of an# Iparaphernalia whi!h!ould e used to violate Se!. 0'@AG of the Conne!ti!ut eneral Statutes Lthe statute dealing with the !rime of !onspira!#MI was held to e ageneral warrant, and therefore invalid. 6 The des!ription of the arti!les sought to e sei-ed under the sear!h warrants in "uestion !annot e!hara!teri-ed differentl#.

2n the Stanford !ase, the 7.S. Supreme Courts !alls to mind a notale !hapter in 9nglish histor#< theera of disa!!ord etween the Tudor overnment and the 9nglish Press, when I8ffi!ers of the Crownwere given roving !ommissions to sear!h where the# pleased in order to suppress and destro# theliterature of dissent oth Catholi! and Puritan *eferen!e herein to su!h histori!al episode would note relevant for it is not the poli!# of our government to suppress an# newspaper or puli!ation thatspeaks with Ithe voi!e of non'!onformit#I ut poses no !lear and imminent danger to state se!urit#.

&s heretofore stated, the premises sear!hed were the usiness and printing offi!es of theI%etropolitan %ailI and the I?e 6orum newspapers. &s a !onse"uen!e of the sear!h and sei-ure,these premises were padlo!ked and sealed, with the further result that the printing and puli!ation of said newspapers were dis!ontinued.

Su!h !losure is in the nature of previous restraint or !ensorship ahorrent to the freedom of thepress guaranteed under the fundamental law, 2 and !onstitutes a virtual denial of petitioners freedom to e:press

themselves in print. This state of eing is patentl# anathemati! to a demo!rati! framework where a free, alert and even militant press isessential for the politi!al enlightenment and growth of the !iti-enr#.

*espondents would ustif# the !ontinued sealing of the printing ma!hines on the ground that the#have een se"uestered under Se!tion of Presidential De!ree No. 0, as amended, whi!hauthori-es Ithe se"uestration of the propert# of an# person, natural or artifi!ial, engaged insuversive a!tivities against the government and its dul# !onstituted authorities ... in a!!ordan!ewith implementing rules and regulations as ma# e issued # the Se!retar# of National Defense.I 2tis doutful however, if se"uestration !ould validl# e effe!ted in view of the asen!e of an#implementing rules and regulations promulgated # the %inister of National Defense.



>esides, in the De!emer @1, @AE issue of the +ai' E/&ress, it was reported that no less thanPresident %ar!os himself denied the re"uest of the militar# authorities to se"uester the propert#sei-ed from petitioners on De!emer G, @AE. Thus<

The President denied a re"uest flied # government prose!utors for se"uestration ofthe ?9 68*7% newspaper and its printing presses, a!!ording to 2nformation

%inister regorio S. Cendana.

8n the asis of !ourt orders, government agents went to the ?e 6orum offi!es inJue-on Cit# and took a detailed inventor# of the e"uipment and all materials in thepremises.

Cendaa said that e!ause of the denial the newspaper and its e"uipment remain atthe disposal of the owners, sue!t to the dis!retion of the !ourt. 1

That the propert# sei-ed on De!emer G, @AE had not een se"uestered is further !onfirmed # therepl# of then 6oreign %inister Carlos P. *omulo to the letter dated 6eruar# @1, @AB of 7.S.

Congressman Ton# P. all addressed to President %ar!os, e:pressing alarm over the I?9 68*7%I !ase. -7 2n this repl# dated 6eruar# @@, @AB, %inister *omulo stated<

E. Contrar# to reports, President %ar!os turned down the re!ommendation of ourauthorities to !lose the papers printing fa!ilities and !onfis!ate the e"uipment andmaterials it uses. -

2N +29? 86 T9 68*982N, Sear!h ?arrants Nos. E1'ELaM and E1'ELM issued # respondent udge on De!emer G, @AE are here# de!lared null and void and are a!!ordingl# set aside. Thepra#er for a writ of mandator# inun!tion for the return of the sei-ed arti!les is here# granted and allarti!les sei-ed thereunder are here# ordered released to petitioners. No !osts.

S8 8*D9*9D.


%anila

9N >&NC

).R. No. L*+1577 3u"y --0 125

3OSE ANTONIO U. )ON8ALE8 in /e9a"f of MALAYA FILMS0 LINO BRO(KA0 3OSE F. LA(ABA0

an% &UL(E :. SA)UISA)0 petitioners,vs.($AIRMAN MARIA KALAW KATI)BAK0 )ENERAL WILFRE&O (. ESTRA&A ;Ret.<0 an% T$E

BOAR& OF REVIEW FOR MOTION 'I(TURES AN& TELEVISION ;BRM'T<0 respondents.

rene $. )ortes, Per%ecto V. -ernandez, 0adee 1orac and Joker P. Arroo %or &etitioners.

The So'icitor (enera' %or res&ondents.



FERNAN&O0 C.J.:

2n this !ase of first impression, a !ertiorari pro!eeding filed on =anuar# @1, @A0, there is apersuasive ring to the invo!ation of the !onstitutional right to freedom of e:pression of an artistKandfor that matter a man of letters tooKas the asis for a ruling on the s!ope of the power of respondent>oard of *eview for %otion Pi!tures and Television and how it should e e:er!ised. The dispute etweenthe parties has een narrowed down. The motion pi!ture in "uestion, 2a&it sa Pata'i" was !lassified I6or

&dults 8nl#.I There is the further issue then, also one of first impression, as to the proper test of what!onstitutes os!enit# in view of the oe!tions raised. Thus the relevan!e of this !onstitutional !ommand<I&rts and letters shall e under the patronage of the State. -

The prin!ipal petitioner is =ose &ntonio 7. on-ale-, 4 President of the %ala#a 6ilms, a movieprodu!tion outfit dul# registered as a single proprietorship with the >ureau of Domesti! Trade. Therespondent is the >oard of *eview for %otion Pi!tures and Television, with %aria Halaw Hatigak as itsChairman and >rig. en. ?ilfredo C. 9strada as its +i!e'Chairman, also named respondents.

2n a resolution of a su'!ommittee of respondent >oard of 8!toer EB, @A, a permit to e:hiit thefilm Hapit sa Patalim under the !lassifi!ation I6or &dults 8nl#,I with !ertain !hanges and deletionsenumerated was granted. & motion for re!onsideration was filed # petitioners stating that the!lassifi!ation of the film I6or &dults 8nl#I was without asis. , Then on Novemer @E, @A,respondent >oard released its de!ision< I&!ting on the appli!ants %otion for *e!onsideration dated EA8!toer @A, the >oard, after a review of the resolution of the su'!ommittee and an e:amination of thefilm, *esolves to affirm in toto the ruling of the su'!ommittee. Considering, however, !ertain vitaldefi!ien!ies in the appli!ation, the >oard further *esolves to dire!t the Chairman of the >oard to ?ithheldthe issuan!e of the Permit to e:hiit until these defi!ien!ies are supplied. 5 en!e this petition.

This Court, in a resolution of =anuar# @E, @A0, re"uired respondent to answer. 2n su!h pleadingsumitted on =anuar# E@, @A0, as one of its spe!ial and affirmative defenses, it was alleged that the

petition is moot as Irespondent >oard has revoked its "uestioned resolution, repla!ing it with oneimmediatel# granting petitioner !ompan# a permit to e:hiit the film Hapit without an# deletion or !utLthus anM adudi!ation of the "uestions presented aove would e a!ademi! on the !ase.I + 6urther<IThe modified resolution of the >oard, of !ourse, !lassifies Hapit as for'adults'onl#, ut the petition doesnot raise an# issue as to the validit# of this !lassifi!ation. &ll that petitioners assail as aritrar# on the partof the >oards a!tion are the deletions ordered in the film. 6 The pra#er was for the dismissal of thepetition.

&n amended petition was then filed on =anuar# E0, @A0. The main oe!tion was the !lassifi!ationof the film as I6or &dults 8nl#.I 6or petitioners, su!h !lassifi!ation Iis without legal and fa!tual asisand is e:er!ised as impermissile restraint of artisti! e:pression. The film is an integral whole and allits portions, in!luding those to whi!h the >oard now offers elated oe!tion, are essential for theintegrit# of the film. +iewed as a whole, there is no asis even for the vague spe!ulations advan!ed# the >oard as asis for its !lassifi!ation. 2 There was an answer to the amended petition filed on6eruar# @, @A0. 2t was therein asserted that the issue presented as to the previous deletions ordered# the >oard as well as the statutor# provisions for review of films and as to the re"uirement to sumit themaster negative have een all rendered moot. 2t was also sumitted that the standard of the law for!lassif#ing films afford a pra!ti!al and determinative #ardsti!k for the e:er!ise of udgment. 6orrespondents, the "uestion of the suffi!ien!# of the standards remains the onl# "uestion at issue.



2t would e undul# restri!tive under the !ir!umstan!es to limit the issue to one of the suffi!ien!# ofstandards to guide respondent >oard in the e:er!ise of its power. 9ven if su!h were the !ase, thereis ustifi!ation for an in"uir# into the !ontrolling standard to warrant the !lassifi!ation of I6or &dults8nl#.I This is espe!iall# so, when os!enit# is the asis for an# alleged invasion of the right to thefreedom of artisti! and literar# e:pression emra!ed in the free spee!h and free press guarantees of the Constitution.

@. %otion pi!tures are important oth as a medium for the !ommuni!ation of 2deas and thee:pression of the artisti! impulse. Their effe!ts on the per!eption # our people of issues and puli!offi!ials or puli! figures as well as the prevailing !ultural traits is !onsiderale. Nor as pointed outin #urstn v. Wi'son 1 is the Iimportan!e of motion pi!tures as an organ of puli! opinion lessened # thefa!t that the# are designed to entertain as well as to inform. 7 There is no !lear dividing line etween whatinvolves knowledge and what affords pleasure. 2f su!h a distin!tion were sustained, there is a diminutionof the asi! right to free e:pression. 8ur re!ent de!ision in $ees v. #agatsing !autions against su!h amove. Press freedom, as stated in the opinion of the Court, Ima# e 2dentified with the liert# to dis!usspuli!l# and truthfull# an# matter of puli! !on!ern without !ensorship or punishment. - This is not to sa#that su!h freedom, as is the freedom of spee!h, asolute. 2t !an e limited if Ithere e a !lear andpresent danger of a sustantive evil that Lthe StateM has a right to prevent. 4

E. Censorship or previous restraint !ertainl# is not all there is to free spee!h or free press. 2f it wereso, then su!h asi! rights are emas!ulated. 2t is however, e:!ept in e:!eptional !ir!umstan!esa sine 3ua non for the meaningful e:er!ise of su!h right. This is not to den# that e"uall# asi! is theother important aspe!t of freedom from liailit#. Nonetheless, for the purposes of this litigation, theemphasis should rightl# e on freedom from !ensorship. 2t is, e#ond "uestion, a well'settledprin!iple in our urisdi!tion. &s earl# as @A1A, in the !ase of 4nited States v. Sedano, , a prose!utionfor liel, the Supreme Court of the Philippines alread# made !lear that freedom of the press !onsists inthe right to print what one !hooses without an# previous li!ense. There is reaffirmation of su!h a viewin Mutuc v. )o""ission on E'ections, 5 where an order of respondent Commission on 9le!tions givingdue !ourse to the !ertifi!ate of !andida!# of petitioner ut prohiiting him from using ingles in his moileunits e"uipped with sound s#stems and loud speakers was !onsidered an aridgment of the right of the

freedom of e:pression amounting as it does to !ensorship. 2t is the opinion of this Court, therefore, that toavoid an un!onstitutional taint on its !reation, the power of respondent >oard is limited to the!lassifi!ation of films. 2t !an, to safeguard other !onstitutional oe!tions, determine what motion pi!turesare for general patronage and what ma# re"uire either parental guidan!e or e limited to adults onl#. Thatis to aide # the prin!iple that freedom of e:pression is the rule and restri!tions the e:emption. Thepower to e:er!ise prior restraint is not to e presumed, rather the presumption is against its validit#. +

B. The test, to repeat, to determine whether freedom of e:!ession ma# e limited is the !lear andpresent danger of an evil of a sustantive !hara!ter that the State has a right to prevent. Su!hdanger must not onl# e !lear ut also present. There should e no dout that what is feared ma# etra!ed to the e:pression !omplained of. The !ausal !onne!tion must e evident. &lso, there must ereasonale apprehension aout its imminen!e. The time element !annot e ignored. Nor does it

suffi!e if su!h danger e onl# proale. There is the re"uire of its eing well'nigh inevitale. Theasi! postulate, wherefore, as noted earlier, is that where the movies, theatri!al produ!tions radios!ripts, television programs, and other su!h media of e:pression are !on!erned K in!luded as the#are in freedom of e:pression K !ensorship, espe!iall# so if an entire produ!tion is anned, isallowale onl# under the !learest proof of a !lear and present danger of a sustantive evil to puli!puli! morals, puli! health or an# other legitimate puli! interest. 6 There is merit to the oservationof =usti!e Douglas that Iever# writer, a!tor, or produ!er, no matter what medium of e:pression he ma#use, should e freed from the !ensor. 2



. The law, however, frowns on os!enit# and rightl# so. &s !ategori!all# stated # Justice #rennan

in $oth v. 4nited States 1 speaking of the free spee!h and press guarantee of the 7nited StatesConstitution< I&ll 2deas having even the slightest redeeming so!ial importan!e K unorthodo: 2deas,!ontroversial 2deas, even 2deas hateful to the prevailing !limate of opinion K have the full prote!tion ofthe guaranties, unless e:!ludale e!ause the# en!roa!h upon the limited area of the 6irst &mendment isthe ree!tion of os!enit# as utterl# without redeeming so!ial importan!e. -7 Su!h a view !ommends itself

for approval.

0. There is, however, some diffi!ult# in determining what is os!ene. There is persuasiveness to theapproa!h followed in *oth< IThe earl# leading standard of os!enit# allowed material to e udgedmerel# # the effe!t of an isolated e:!erpt upon parti!ularl# sus!eptile persons. $egina v.

0ick'in L@FM ;* B J> BF1. Some &meri!an !ourts adopted this standard ut later de!isions haveree!ted it and sustituted this test< whether to the average person, appl#ing !ontemporar#!ommunit# standards, the dominant theme of the material taken as a whole appeals to prurientinterest. The i!klin test, udging os!enit# # the effe!t of isolated passages upon the mostsus!eptile persons, might well en!ompass material legitimatel# treating with se:, and so it must eree!ted as un!onstitutionall# restri!tive of the freedoms of spee!h and press. 8n the other hand, thesustituted standard provides safeguards ade"uate to withstand the !harge of !onstitutional

infirmit#. -

F. The aove e:!erpt whi!h imposes on the udi!iar# the dut# to e ever on guard against an#impermissile infringement on the freedom of artisti! e:pression !alls to mind the landmark ponen!iaof =usti!e %al!olm in4nited States v. #ustos, -- de!ided in @A@. ?hile re!ogni-ing the prin!iple thatliel is e#ond the pale of !onstitutional prote!tion, it left no dout that in determining what !onstitutessu!h an offense, a !ourt should ever e mindful that no violation of the right to freedom of e:pression isallowale. 2t is a matter of pride for the Philippines that it was not until @A in 5e 1ork Ti"er v.

Su''ivan, -4 thirt#'#ears later, that the 7nited States Supreme Court enun!iated a similar do!trine.

G. 2t is "uite understandale then wh# in the *oth opinion, =usti!e >rennan took pains to emphasi-ethat Ise: and os!enit# are not s#non#mous. -, 6urther< I8s!ene material is material whi!h deals withse: in a manner appealing to prurient interest. The portra#al of se:, e.g., in art, literature and s!ientifi!works, is not itself suffi!ient reason to den# material the !onstitutional prote!tion of freedom of spee!hand press. Se:, a great and m#sterious motive for!e in human life has indisputal# een a sue!t ofasoring interest to mankind through the agesQ it is one of the vital prolems of human interest andpuli! !on!ern. -5

. 2n the appli!ale law, 9:e!utive 8rder No. GF, referen!e was made to respondent >oardIappl#ing !ontemporar# 6ilipino !ultural values as standard, -+ words whi!h !an e !onstrued in ananalogous manner. %oreover, as far as the "uestion of se: and os!enit# are !on!erned, it !annot estressed strongl# that the arts and letters Ishall e under the patronage of the State. -6 That is a!onstitutional mandate. 2t will e less than true to its fun!tion if an# government offi!e or agen!# wouldinvade the sphere of autonom# that an artist eno#s. There is no orthodo:# in what passes for eaut# or

for realit#. 2t is for the artist to determine what for him is a true representation. 2t is not to e forgotten thatart and be''es'ettres deal primaril# with imagination, not so mu!h with ideas in a stri!t sense. ?hat is seenor per!eived # an artist is entitled to respe!t, unless there is a showing that the produ!t of his talentrightfull# ma# e !onsidered os!ene. &s so wen put # =usti!e 6rankfurter in a !on!urring opinion, Ithewidest s!ope of freedom is to e given to the adventurous and imaginative e:er!ise of the humanspiritI -2 in this sensitive area of a mans personalit#. 8n the "uestion of os!enit#, therefore, and in thelight of the fa!ts of this !ase, su!h standard set forth in 9:e!utive 8rder No. G is to e !onstrued insu!h a fashion to avoid an# taint of un!onstitutionalit#. To repeat, what was stated in a re!entde!ision -1!iting the language of =usti!e %al!olm in 1u )ong Eng v. Trinidad , 47 it is Ian elementar#, a



fundamental, and a universal role of !onstru!tion, applied when !onsidering !onstitutional "uestions, thatwhen a law is sus!eptile of two !onstru!tions one of whi!h will maintain and the other destro# it, the!ourts will alwa#s adopt the former. 4 &s thus !onstrued, there !an e no valid oe!tion to the suffi!ien!#of the !ontrolling standard and its !onformit# to what the Constitution ordains.

A. This eing a !ertiorari petition, the "uestion efore the Court is whether or not there was a grave

ause of dis!retion. That there was an ause of dis!retion # respondent >oard is evident in the lightof the diffi!ult# and travail undergone # petitioners efore 2a&it sa Pata'i" was !lassified as I6or

&dults 8nl#,I without an# deletion or !ut. %oreover its per!eption of what !onstitutes os!enit#appears to e undul# restri!tive. This Court !on!ludes then that there was an ause of dis!retion.Nonetheless, there are not enough votes to maintain that su!h an ause !an e !onsidered grave.

&!!ordingl#, !ertiorari does not lie. This !on!lusion finds support in this e:planation of respondentsin its &nswer to the amended petition< IThe adult !lassifi!ation given the film serves as a warning totheater operators and viewers that some !ontents of Hapit are not fit for the #oung. Some of thes!enes in the pi!ture were taken in a theater'!lu and a good portion of the film shots !on!entratedon some women eroti!all# dan!ing naked, or at least nearl# naked, on the theater stage. &nothers!ene on that stage depi!ted the women kissing and !aressing as lesians. &nd toward the end ofthe pi!ture, there e:ists s!enes of e:!essive violen!e attending the attle etween a group of

roers and the poli!e. The vulnerale and imitative in the #oung audien!e will misunderstand theses!enes.I 4- 6urther< I*espondents further stated in its answer that petitioner !ompan# has an option tohave the film re!lassified to 6or'eneral'Patronage if it would agree to remove the os!ene s!enes andpare down the violen!e in the film.I 44 Petitioners, however, refused the I6or &dults 8nl#I !lassifi!ationand instead, as noted at the outset, filed this suit for !ertiorari.

@1. &ll that remains to e said is that the ruling is to e limited to the !on!ept of os!enit# appli!aleto motion pi!tures. 2t is the !onsensus of this Court that where television is !on!erned< a less lieralapproa!h !alls for oservan!e. This is so e!ause unlike motion pi!tures where the patrons have topa# their wa#, television rea!hes ever# home where there is a set. Children then will likel# will eamong the avid viewers of the programs therein shown. &s was oserved # Cir!uit Court of &ppeals=udge =erome 6rank, it is hardl# the !on!ern of the law to deal with the se:ual fantasies of the adultpopulation. 4, it !annot e denied though that the State as &arens &atriae is !alled upon to manifest anattitude of !aring for the welfare of the #oung.

?9*968*9, this Court, in the light of the prin!iples of law enun!iated in the opinion, dismissesthis petition for !ertiorari solel# on the ground that there are not enough votes for a ruling that therewas a grave ause of dis!retion in the !lassifi!ation of 2a&it sa Pata'i" as I6or'&dults'8nl#.I


%anila

9N >&NC

).R. No. L*+54++ No=em/er 10 124

3OSE B.L. REYES0 in /e9a"f of t9e ANTI*BASES (OALITION ;AB(<0 petitioner,vs.RAMON BA)ATSIN)0 a! Mayor of t9e (ity of Mani"a0 respondent.



Lorenzo M. Tañada Jose W. +iokno and 0adee #. 1orac %or &etitioner.

The So'icitor (enera' %or res&ondent.

FERNAN&O0 C.J.:ñé+.£ªwph!1

This Court, in this !ase of first impression, at least as to some aspe!ts, is !alled upon to delineatethe oundaries of the prote!ted area of the !ognate rights to free spee!h and pea!ealeasseml#, against an alleged intrusion # respondent %a#or *amon >agatsing. Petitioner, retired=usti!e => ;. *e#es, on ehalf of the &nti'>ases Coalition sought a permit from the Cit# of %anila to holda pea!eful mar!h and rall# on 8!toer EF, @AB from E<11 to 0<11 in the afternoon, starting from the;uneta, a puli! park, to the gates of the 7nited States 9mass#, hardl# two lo!ks awa#. 8n!e there,and in an open spa!e of puli! propert#, a short program would e held. - During the !ourse of the oralargument, 4 it was stated that after the deliver# of two rief spee!hes, a petition ased on the resolutionadopted on the last da# # the 2nternational Conferen!e for eneral Disarmament, ?orld Pea!e and the*emoval of &ll 6oreign %ilitar# >ases held in %anila, would e presented to a representative of the9mass# or an# of its personnel who ma# e there so that it ma# e delivered to the 7nited States

&massador. The mar!h would e attended # the lo!al and foreign parti!ipants of su!h !onferen!e.There was likewise an assuran!e in the petition that in the e:er!ise of the !onstitutional rights to freespee!h and asseml#, all the ne!essar# steps would e taken # it Ito ensure a pea!eful mar!h andrall#.I ,

The filing of this suit for mandamus with alternative pra#er for writ of preliminar# mandator#inun!tion on 8!toer E1, @AB was due to the fa!t that as of that date, petitioner had not eeninformed of an# a!tion taken on his re"uest on ehalf of the organi-ation to hold a rall#. 8n 8!toerE0, @AB, the answer of respondent %a#or was filed on his ehalf # &ssistant Soli!itor eneral9duardo . %ontenegro. 5 2t turned out that on 8!toer @A, su!h permit was denied. Petitioner wasunaware of su!h a fa!t as the denial was sent # ordinar# mail. The reason for refusing a permit was dueto poli!e intelligen!e reports whi!h strongl# militate against the advisailit# of issuing su!h permit at thistime and at the pla!e applied for.I + To e more spe!ifi!, referen!e was made to persistent intelligen!ereports affirmLingM the plans of suversiveR!riminal elements to infiltrate andRor disrupt an# asseml# or!ongregations where a large numer of people is e:pe!ted to attend.I 6 *espondent %a#or suggested,however, in a!!ordan!e with the re!ommendation of the poli!e authorities, that Ia permit ma# e issuedfor the rall# if it is to e held at the *i-al Coliseum or an# other en!losed area where the safet# of theparti!ipants themselves and the general puli! ma# e ensured.I 2

The oral argument was heard on 8!toer E0, @AB, the ver# same da# the answer was filed. TheCourt then delierated on the matter. That same afternoon, a minute resolution was issued # theCourt granting the mandator# inun!tion pra#ed for on the ground that there was no showing of thee:isten!e of a !lear and present danger of a sustantive evil that !ould ustif# the denial of a permit.

8n this point, the Court was unanimous, ut there was a dissent # =usti!e &"uino on the groundthat the holding of a rall# in front of the 7S 9mass# would e violative of 8rdinan!e No. GEA0 of theCit# of %anila. The last senten!e of su!h minute resolution reads< IThis resolution is withoutpreudi!e to a more e:tended opinion.I 1 en!e this detailed e:position of the Courts stand on thematter.

@. 2t is thus !lear that the Court is !alled upon to prote!t the e:er!ise of the !ognate rights to freespee!h and pea!eful asseml#, arising from the denial of a permit. The Constitution is "uite e:pli!it<



INo law shall e passed aridging the freedom of spee!h, or of the press, or the right of the peoplepea!eal# to assemle and petition the overnment for redress of grievan!es.I 7 6ree spee!h, likefree press, ma# e 2dentified with the liert# to dis!uss puli!l# and truthfull# an# matter of puli! !on!ernwithout !ensorship or punishment. There is to e then no previous restraint on the !ommuni!ation ofviews or suse"uent liailit# whether in liel suits, - prose!ution for sedition, 4 or a!tion fordamages, , or !ontempt pro!eedings 5 unless there e a !lear and present danger of a sustantive evil

that Lthe StateM has a right to prevent.I + 6reedom of asseml# !onnotes the right people to meetpea!eal# for !onsultation and dis!ussion of matters 8f puli! !on!ern. 6 2t is entitled to e a!!orded theutmost deferen!e and respe!t. 2t is hot to e limited, mu!h less denied, e:!ept on a showing, as s the!ase with freedom of e:pression, of a !lear and present danger of a sustantive evil that the state has aright to prevent. 2 9ven prior to the @AB0 Constitution, =usti!e %ai!olm had o!!asion to stress that it is ane!essar# !onse"uen!e of our repuli!an institutions and !omplements the right of free spee!h. 1 Toparaphrase opinion of =usti!e *utledge speaking for the maorit# of the A"erican Su&re"e )ourt

Tho"as v. )o''ins, -7 it was not # a!!ident or !oin!iden!e that the right to freedom of spee!h and of thepress were toupled in a single guarantee with the and to petition the rights of the people pea!eal# toassemle and to petition the government for redress of grievan!es. &ll these rights, while not 2denti!al,are inseparale. the ever# !ase, therefo re there is a limitation pla!ed on the e:er!ise of this right, the

udi!iar# is !alled upon to e:amine the effe!ts of the !hallenged governmental a!tuation. The sole

ustifi!ation for a limitation on the e:er!ise of this right, so fundamental to the maintenan!e of demo!rati!institutions, is the danger, of a !hara!ter oth grave and imminent, of a serious evil to puli! safet#, puli!morals, puli! health, or an# other legitimate puli! interest. -

E. Nowhere is the rationale that underlies the freedom of e:pression and pea!eale asseml# ettere:pressed than in this e:!erpt from an opinion of =usti!e 6rankfurter< I2t must never e forgotten,however, that the >ill of *ights was the !hild of the 9nlightenment. >a!k of the guarant# of freespee!h la# faith in the power of an appeal to reason # all the pea!eful means for gaining a!!ess tothe mind. 2t was in order to avert for!e and e:plosions due to restri!tions upon rational modes of!ommuni!ation that the guarant# of free spee!h was given a generous s!ope. >ut utteran!e in a!onte:t of violen!e !an lose its signifi!an!e as an appeal to reason and e!ome part of aninstrument of for!e. Su!h utteran!e was not meant to e sheltered # the Constitution.I -- ?hat was

rightfull# stressed is the aandonment of reason, the utteran!e, whether veral or printed, eing in a!onte:t of violen!e. 2t must alwa#s e rememered that this right likewise provides for a safet# valve,allowing parties the opportunit# to give vent to their'views, even if !ontrar# to the prevailing !limate ofopinion. 6or if the pea!eful means of !ommuni!ation !annot e availed of, resort to non'pea!eful meansma# e the onl# alternative. Nor is this the sole reason for the e:pression of dissent. 2t means more than

ust the right to e heard of the person who feels aggrieved or who is dissatisfied with things as the# are.2ts value ma# lie in the fa!t that there ma# e something worth hearing from the dissenter. That is toensure a true ferment of 2deas. There are, of !ourse, well'defined limits. ?hat is guaranteed is pea!ealeasseml#. 8ne ma# not advo!ate disorder in the name of protest, mu!h less prea!h reellion under the!loak of dissent. The Constitution frowns on disorder or tumult attending a rall# or asseml#. resort tofor!e is ruled out and outreaks of violen!e to e avoided. The utmost !alm though is not re"uired. &spointed out in an earl# Philippine !ase, penned in @A1G to e pre!ise, 4nited States v. A&urado< -4 I2t israther to e e:pe!ted that more or less disorder will mark the puli! asseml# of the people to protest

against grievan!es whether real or imaginar#, e!ause on su!h o!!asions feeling is alwa#s wrought to ahigh pit!h of e:!itement, and the greater the grievan!e and the more intense the feeling, the less perfe!t,as a rule, will e the dis!iplinar# !ontrol of the leaders over their irresponsile followers.I -, 2t earsrepeating that for the !onstitutional right to e invoked, riotous !ondu!t, inur# to propert#, and a!ts ofvandalism must e avoided, To give free rein to ones destru!tive urges is to !all for !ondemnation. 2t is tomake a mo!ker# of the high estate o!!upied # intelle!tual liert# in our s!heme of values.



B. There !an e no legal oe!tion, asent the e:isten!e of a !lear and present danger of asustantive evil, on the !hoi!e of ;uneta as the pla!e where the pea!e rall# would start. ThePhilippines is !ommitted to the view e:pressed in the pluralit# opinion, of @ABA vintage, of =usti!e*oerts in 0ague v. )*6 -5 ?henever the title of streets and parks ma# rest, the# have immemoriall#een held in trust for the use of the puli! and, time out of mind, have een used for purposes ofasseml#, !ommuni!ating thoughts etween !iti-ens, and dis!ussing puli! "uestions. Su!h use of the

streets and puli! pla!es has, from an!ient times, een a part of the privileges, immunities, rights, andlierties of !iti-ens. The privilege of a !iti-en of the 7nited States to use the streets and parks for!ommuni!ation of views on national "uestions ma# e regulated in the interest of allQ it is not asolute, utrelative, and must e e:er!ised in suordination to the general !omfort and !onvenien!e, and in!onsonan!e with pea!e and good orderQ ut it must not, in the guise of regulation, e aridged ordenied. -+ The aove e:!erpt was "uoted with approval in Primi!ias v. 6ugoso. -6 Primi!ias made e:pli!itwhat was impli!it in Munici&a'it o% )avite v. $o!as,I -2 a @A@0 de!ision, where this Court !ategori!all#affirmed that pla-as or parks and streets are outside the !ommer!e of man and thus nullified a !ontra!tthat leased Pla-a Soledad of plaintiff'muni!ipalit#. *eferen!e was made to su!h pla-a Ieing apromenade for puli! use,I -1 whi!h !ertainl# is not the onl# purpose that it !ould serve. To repeat, there!an e no valid reason wh# a permit should not e granted for the or oposed mar!h and rall# starting froma puli! dark that is the ;uneta.

. Neither !an there e an# valid oe!tion to the use of the streets, to the gates of the 7S 9mass#,hardl# two lo!k'awa# at the *o:as >oulevard. Pri"icias v. -ugoso has resolved an# lurking douton the matter. 2n holding that the then %a#or 6ugoso of the Cit# of %anila should grant a permit for apuli! meeting at Pla-a %iranda in Juiapo, this Court !ategori!all# de!lared< I8ur !on!lusion findssupport in the de!ision in the !ase of Wi''is )o/ vs. State o% 5e 0a"&shire, B@E 7.S., 0FA. 2n that!ase, the statute of New ampshire P. ;. !hap. @0, se!tion E, providing that no parade orpro!ession upon an# ground autting thereon, shall De permitted unless a spe!ial li!ense thereforshall first e e:plained from the sele!tmen of the town or from li!ensing !ommittee, was !onstrued# the Supreme Court of New ampshire as not !onferring upon the li!ensing oard unfettereddis!retion to refuse to grant the li!ense, and held valid. &nd the Supreme Court of the 7nited States,in its de!ision (@A@) penned # Chief =usti!e ughes affirming the udgment of the State Supreme

Court, held that a statute re"uiring persons using the puli! streets for a parade or pro!ession topro!ure a spe!ial li!ense therefor from the lo!al authorities is not an un!onstitutional aridgment ofthe rights of asseml# or of freedom of spee!h and press, where, as the statute is !onstrued # thestate !ourts, the li!ensing authorities are stri!tl# limited, in the issuan!e of li!enses, to a!onsideration of the time, pla!e, and manner of the parade or pro!ession, with a view to !onservingthe puli! !onvenien!e and of affording an opportunit# to provide proper poli!ing, and are notinvested with aritrar# dis!retion to issue or refuse li!ense, ... I 47 Nor should the point made # Chief=usti!e ughes in a suse"uent portion of the opinion e ignored, ICivil lierties, as guaranteed # theConstitution, impl# the e:isten!e of an organi-ed so!iet# maintaining puli! order without whi!h liert#itself would e lost in the e:!esses of unrestri!ted auses. The authorit# of a muni!ipalit# to imposeregulations in order to assure the safet# and !onvenien!e of the people in the use of puli! highwa#s hasnever een regarded as in!onsistent with !ivil lierties ut rather as one of the means of safeguarding the

good order upon whi!h the# ultimatel# depend. The !ontrol of travel on the streets of !ities is the mostfamiliar illustration of this re!ognition of so!ial need. ?here a restri!tion of the use of highwa#s in thatrelation is designed to promote the puli! !onvenien!e in the interest of all, it !annot e disregarded #the attempted e:er!ise of some !ivil right whi!h in other !ir!umstan!es would e entitled to prote!tion.I 4

0. There is a novel aspe!t to this !ase, 2f the rall# were !onfined to ;uneta, no "uestion, as noted,would have arisen. So, too, if the mar!h would end at another park. &s previousl# mentioned though,there would e a short program upon rea!hing the puli! spa!e etween the two gates of the 7nitedStates 9mass# at *o:as >oulevard. That would e followed # the handing over of a petition ased



on the resolution adopted at the !losing session of the &nti'>ases Coalition. The Philippines is asignator# of the +ienna Convention on Diplomati! *elations adopted in @AF@. 2t was !on!urred in #the then Philippine Senate on %a# B, @AF0 and the instrument of ratifi!ation was signed # thePresident on 8!toer @@, @AF0, and was thereafter deposited with the Se!retar# eneral of the7nited Nations on Novemer @0. &s of that date then, it was inding on the Philippines. The se!ondparagraph of the &rti!le EE reads< IE. The re!eiving State is under a spe!ial dut# to take appropriate

steps to prote!t the premises of the mission against an# intrusion or damage and to prevent an#disturan!e of the pea!e of the mission or impairment of its dignit#. I 4- The Constitution Iadopts thegenerall# a!!epted prin!iples of international law as part of the law of the land. ...I 44 To the e:tent that the+ienna Convention is a restatement of the generall# a!!epted prin!iples of international law, it should ea part of the law of the land. 4, That eing the !ase, if there were a !lear and present danger of an#intrusion or damage, or disturan!e of the pea!e of the mission, or impairment of its dignit#, there woulde a ustifi!ation for the denial of the permit insofar as the terminal point would e the 9mass#.%oreover, respondent %a#or relied on 8rdinan!e No. GEA0 of the Cit# of %anila prohiiting the holding orstaging of rallies or demonstrations within a radius of five hundred (011) feet from an# foreign mission or!han!er# and for other purposes. 7nless the ordinan!e is nullified, or de!lared u'tra vires, its invo!ationas a defense is understandale ut not de!isive, in view of the prima!# a!!orded the !onstitutional rightsof free spee!h and pea!eale asseml#. 9ven if shown then to e appli!ale, that "uestion the !onfronts

this Court.

F. There is merit to the oservation that e:!ept as to the novel aspe!ts of a litigation, the udgmentmust e !onfined within the limits of previous de!isions. The law de!lared on past o!!asions is, onthe whole, a safe guide, So it has een here. en!e, as noted, on the afternoon of the hearing,8!toer E0, @AB, this Court issued the minute resolution granting the mandator# inun!tion allowingthe proposed mar!h and rall# s!heduled for the ne:t da#. That !on!lusion was inevitale ill theasen!e of a !lear and present danger of a sustantive, evil to a legitimate puli! interest. Therewas no ustifi!ation then to den# the e:er!ise of the !onstitutional rights of tree spee!h andpea!eale asseml#. These rights are assured # our Constitution and the 7niversal De!laration ofuman *ights. 45 The parti!ipants to su!h asseml#, !omposed primaril# of those in attendan!e at the2nternational Conferen!e for eneral Disarmament, ?orld Pea!e and the *emoval of &ll 6oreign %ilitar#

>ases would start from the ;uneta. pro!eeding through *o:as >oulevard to the gates of the 7nited States9mass# lo!ated at the same street. To repeat, it is settled law that as to puli! pla!es, espe!iall# so asto parks and streets, there is freedom of a!!ess. Nor is their use dependent on who is the appli!ant forthe permit, whether an individual or a group. 2f it were, then the freedom of a!!ess e!omesdis!riminator# a!!ess, giving rise to an e"ual prote!tion "uestion. The prin!iple under &meri!an do!trineswas given utteran!e # Chief =usti!e ughes in these words< IThe "uestion, if the rights of free spee!hand pea!eale asseml# are to e preserved, is not as to the auspi!es under whi!h the meeting is heldut as to its purposeQ not as to The relations of the speakers, ut whether their utteran!es trans!end theounds of the freedom of spee!h whi!h the Constitution prote!ts.I 4+ There !ould e danger to puli!pea!e and safet# if su!h a gathering were marked # turulen!e. That would deprive it of its pea!eful!hara!ter. 9ven then, onl# the guilt# parties should e held a!!ountale. 2t is true that the li!ensingoffi!ial, here respondent %a#or, is not devoid of dis!retion in determining whether or not a permit would

e granted. 2t is not, however, unfettered dis!retion. ?hile pruden!e re"uires that there e a realisti!appraisal not of what ma# possil# o!!ur ut of what ma# &robab' occur , given all the relevant!ir!umstan!es, still the assumption K espe!iall# so where the asseml# is s!heduled for a spe!ifi! puli!K pla!e is that the permit must e for the asseml# eing held there. The e:er!ise of su!h a right, in thelanguage of =usti!e *oerts, speaking for the &meri!an Supreme Court, is not to e Iaridged on the pleathat it ma# e e:er!ised in some other pla!e.I 46

G. 2n fairness to respondent %a#or, he a!ted on the elief that 5avarro v. Vi''egas 42 and Pagkakaisa

ng Manggagaang Pi'i&ino 7PMP.8 v. #agatsing, 41 !alled for appli!ation. ?hile the eneral rule is that a



permit should re!ogni-e the right of the appli!ants to hold their asseml# at a puli! pla!e of their !hoi!e,another pla!e ma# e designated # the li!ensing authorit# if it e shown that there is a !lear and presentdanger of a sustantive evil if no su!h !hange were made. 2n the Navarro and the Pagkakaisa de!isions,this Court was persuaded that the !lear and present danger test was satisfied. The present situation is"uite different. en!e the de!ision rea!hed # the Court. The mere assertion that suversives ma#infiltrate the ranks of the demonstrators does not suffi!e. Not that it should e overlooked. There was in

this !ase, however, the assuran!e of eneral Nar!iso Carera, Superintendent, ?estern Poli!e Distri!t,%etropolitan Poli!e 6or!e, that the poli!e for!e is in a position to !ope with su!h emergen!# should itarise That is to !ompl# with its dut# to e:tend prote!tion to the parti!ipants of su!h pea!eale asseml#.

&lso from him !ame the !ommendale admission that there were the least five previous demonstrationsat the >a#view hotel &rea and Pla-a 6erguson in front of the 7nited States 9mass# where no untowardevent o!!urred. 2t was made !lear # petitioner, through !ounsel, that no a!t offensive to the dignit# of the7nited States %ission in the Philippines would take pla!e and that, as mentioned at the outset of thisopinion, Iall the ne!essar# steps would e taken # it to ensure a pea!eful mar!h and rall#. I ,7 &ssistantSoli!itor eneral %ontenegro e:pressed the view that the presen!e of poli!emen ma# in itself e aprovo!ation. 2t is a suffi!ient answer that the# should sta# at a dis!reet distan!e, ut ever read# and alertto !ope with an# !ontingen!#. There is no need to repeat what was pointed out # Chief =usti!e ughes inCo: that pre!isel#, it is the dut# of the !it# authorities to provide the proper poli!e prote!tion to thosee:er!ising their right to pea!eale asseml# and freedom of e:pression.

. ># wa# of a summar# The appli!ants for a permit to hold an asseml# should inform the li!ensingauthorit# of the date, the puli! pla!e where and the time when it will take pla!e. 2f it were a privatepla!e, onl# the !onsent of the owner or the one entitled to its legal possession is re"uired. Su!happli!ation should e filed well ahead in time to enale the puli! offi!ial !on!erned to appraisewhether there ma# e valid oe!tions to the grant of the permit or to its grant ut at another puli!pla!e. 2t is an indispensale !ondition to su!h refusal or modifi!ation that the !lear and presentdanger test e the standard for the de!ision rea!hed. 2f he is of the view that there is su!h animminent and grave danger of a sustantive evil, the appli!ants must e heard on the matter.Thereafter, his de!ision, whether favorale or adverse, must e transmitted to them at the earliestopportunit#. Thus if so minded, then, !an have re!ourse to the proper udi!ial authorit#. 6ree spee!h

and pea!eale asseml#, along with the other intelle!tual freedoms, are highl# ranked in our s!hemeof !onstitutional values. 2t !annot e too strongl# stressed that on the udi!iar#, K even more so thanon the other departments K rests the grave and deli!ate responsiilit# of assuring respe!t for anddeferen!e to su!h preferred rights. No veral formula, no san!tif#ing phrase !an, of !ourse,dispense with what has een so feli!itiousl# termed # =usti!e olmes Ias the sovereign prerogativeof udgment.I Nonetheless, the presumption must e to in!line the weight of the s!ales of usti!e onthe side of su!h rights, eno#ing as the# do pre!eden!e and prima!#. Clearl# then, to the e:tent thatthere ma# e in!onsisten!ies etween this resolution and that of 5avarro v. Vi''egas, that !ase is &ro

tantomodified. So it was made !lear in the original resolution of 8!toer E0, @AB.

A. *espondent %a#or posed the issue of the appli!ailit# of 8rdinan!e No. GEA0 of the Cit# of %anilaprohiiting the holding or staging of rallies or demonstrations within a radius of five hundred (011)

feet from an# foreign mission or !han!er# and for other purposes. 2t is to e admitted that it findssupport 2n the previousl# "uoted &rti!le EE of the +ienna Convention on Diplomati! *elations. Therewas no showing, however, that the distan!e etween the !han!er# and the emass# gate is lessthan 011 feet. 9ven if it !ould e shown that su!h a !ondition is satisfied. it does not follow thatrespondent %a#or !ould legall# a!t the wa# he did. The validit# of his denial of the permit sought!ould still e !hallenged. 2t !ould e argued that a !ase of un!onstitutional appli!ation of su!hordinan!e to the e:er!ise of the right of pea!eale asseml# presents itself. &s in this !ase therewas no proof that the distan!e is less than 011 feet, the need to pass on that issue was oviated,Should it !ome, then the "ualifi!ation and oservation of =usti!es %akasiar and Plana !ertainl#



!annot e summaril# rushed aside. The high estate a!!orded the rights to free spee!h andpea!eale asseml# demands nothing less.

@1. 8rdinaril#, the remed# in !ases of this !hara!ter is to set aside the denial or the modifi!ation ofthe permit sought and order the respondent offi!ial, to grant it. Nonetheless, as there was urgen!# inthis !ase, the proposed mar!h and rall# eing s!heduled for the ne:t da# after the hearing, this

Court. in the e:er!ise of its !on!eded authorit#, granted the mandator# inun!tion in the resolution of8!toer E0, @AB. 2t ma# e noted that the pea!eful !hara!ter of the pea!e mar!h and rall# on8!toer EF was not marred # an# untoward in!ident. So it has een in other assemlies heldelsewhere. 2t is "uite reassuring su!h that oth on the part of the national government and the!iti-ens, reason and moderation have prevailed. That is as it should e.

?9*968*9, the mandator# inun!tion pra#ed for is granted. No !osts

Reyes v Bagatsing 125 SCRA 553 (1983)Facts: Petitioner sought a er!it "ro! the City o" #ani$a to ho$% a eace"u$ !arch an% ra$$y on

&cto'er 2 1983 "ro! 2:** to 5:** in the a"ternoon starting "ro! the +uneta to the gates o" the,nite% States -!'assy. &nce there an% in an oen sace o" u'$ic roerty a short rogra! /ou$% 'e he$%. 0he !arch /ou$% 'e atten%e% 'y the $oca$ an% "oreign articiants o" suchcon"erence. 0hat /ou$% 'e "o$$o/e% 'y the han%ing over o" a etition 'ase% on the reso$utiona%ote% at the c$osing session o" the AntiBases Coa$ition. 0here /as $ie/ise an assurance inthe etition that in the eercise o" the constitutiona$ rights to "ree seech an% asse!'$y a$$ thenecessary stes /ou$% 'e taen 'y it 4to ensure a eace"u$ !arch an% ra$$y. o/ever the re6uest

/as %enie%. Re"erence /as !a%e to ersistent inte$$igence reorts a""ir!ing the $ans o" su'versive7cri!ina$ e$e!ents to in"i$trate or %isrut any asse!'$y or congregations /here a$arge nu!'er o" eo$e is eecte% to atten%. Reson%ent suggeste% that a er!it !ay 'e issue%i" it is to 'e he$% at the Ria$ Co$iseu! or any other enc$ose% area /here the sa"ety o" thearticiants the!se$ves an% the genera$ u'$ic !ay 'e ensure%. An ora$ argu!ent /as hear%an% the !an%atory inunction /as grante% on the groun% that there /as no sho/ing o" theeistence o" a c$ear an% resent %anger o" a su'stantive evi$ that cou$% usti"y the %enia$ o" aer!it. o/ever ustice A6uino %issente% that the ra$$y is vio$ative o" &r%inance ;o. <295 o" theCity o" #ani$a rohi'iting the ho$%ing o" ra$$ies /ithin a ra%ius o" "ive hun%re% (5**) "eet "ro!any "oreign !ission or chancery an% "or other uroses. ence the Court reso$ves.

=ssue: >hether or ;ot the "ree%o! o" eression an% the right to eacea'$y asse!'$e vio$ate%.

e$%: ?es. 0he invocation o" the right to "ree%o! o" eacea'$e asse!'$y carries /ith it thei!$ication that the right to "ree seech has $ie/ise 'een %isregar%e%. =t is sett$e% $a/ that as tou'$ic $aces esecia$$y so as to ars an% streets there is "ree%o! o" access. ;or is their use%een%ent on /ho is the a$icant "or the er!it /hether an in%ivi%ua$ or a grou. 0here can

'e no $ega$ o'ection a'sent the eistence o" a c$ear an% resent %anger o" a su'stantive evi$ onthe choice o" +uneta as the $ace /here the eace ra$$y /ou$% start. 0i!e i!!e!oria$ +unetahas 'een use% "or uroses o" asse!'$y co!!unicating thoughts 'et/een citiens an%%iscussing u'$ic 6uestions.



Such use o" the u'$ic $aces has "ro! ancient ti!es 'een a art o" the rivi$eges i!!unitiesrights an% $i'erties o" citiens.

>ith regar% to the or%inance there /as no sho/ing that there /as vio$ation an% even i" it cou$% 'e sho/n that such a con%ition is satis"ie% it %oes not "o$$o/ that reson%ent cou$% $ega$$y act

the /ay he %i%. 0he va$i%ity o" his %enia$ o" the er!it sought cou$% sti$$ 'e cha$$enge%.

A su!!ary o" the a$ication "or er!it "or ra$$y: 0he a$icants "or a er!it to ho$% anasse!'$y shou$% in"or! the $icensing authority o" the %ate the u'$ic $ace /here an% the ti!e

/hen it /i$$ tae $ace. =" it /ere a rivate $ace on$y the consent o" the o/ner or the oneentit$e% to its $ega$ ossession is re6uire%. Such a$ication shou$% 'e "i$e% /e$$ ahea% in ti!e toena'$e the u'$ic o""icia$ concerne% to araise /hether there !ay 'e va$i% o'ections to thegrant o" the er!it or to its grant 'ut at another u'$ic $ace. =t is an in%isensa'$e con%ition tosuch re"usa$ or !o%i"ication that the c$ear an% resent %anger test 'e the stan%ar% "or the%ecision reache%. ;otice is given to a$icants "or the %enia$.

freedom of speech cases (consti law)

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